Can a Minor Offense Eliminate Your Right to Bear Arms?

The Ohio appellate court handed down a critical 2nd Amendment-bending decision over the weekend that may have given us a glimpse of how states will maneuver to infringe upon your right to bear arms.

The defendant in the case- Paul Stone- has just been told by the appellate court that he must face felony gun possession charges after Montgomery County court initially dismissed the charges. Stone believed he legally obtained his weapon and violated no statute in its possession or use, and it seems the lower court agreed.

So why has the appellate court decided in State vs. Stone that a possible felony occurred? Because he was caught with a small amount of marijuana five years ago, and that now constitutes a legal “disability” when it comes to gun ownership in Ohio.

Back in 2006, Paul Stone was convicted of simple marijuana possession, a “minor misdemeanor” under Ohio law. There is no jail time possible for the offense. The maximum penalty is a $150 fine, plus some community service. It is not treated as a criminal record for the purposes of employment or licensing questions about an individual’s past. But in Ohio, the legislature has placed a specific limit on the 2nd amendment related to substance possession. Specifically, Ohio Rev. Code § 2923.13 prohibits gun possession by any person who “has been convicted of any offense involving the illegal possession … in any drug of abuse.”

This statute led the district attorney to file 3rd degree felony gun possession charges against Stone solely based on his minor misdemeanor possession of marijuana. The trial court of Montgomery County initially dismissed the indictment, holding minor misdemeanor convictions weren’t enough under the law to prohibit gun ownership.

But the District Attorney’s office wanted another bite at the apple, and appealed the case. The appellate court agreed with the DA. Here is the crux of the defendant’s Second Amendment-based defense, which the appellate court denied:

Appellee [i.e., Stone] also urges this court to affirm the trial court’s dismissal based upon the Second Amendment to the United States Constitution, which, pursuant to District of Columbia v. Heller (2008), 554 U.S. 570, protects an individual’s right to possess a firearm. In advancing this argument, appellee acknowledges that this right is not unconditional and points out that Heller identified various forms of reasonable restrictions a state may place upon a citizen’s ability to have a firearm. Appellee submits, however, the limited list of such restrictions does not include, nor is there obvious historical precedent for, legislation that has the effect of completely abrogating a citizen’s right to bear arms as it pertains to a misdemeanant with no criminal record.

So how did the court decide against this 2nd amendment defense? It punted, refusing even to consider the 2nd amendment question. In essence, the Ohio court has said a state legislature can pass a law that makes it a felony to possess a gun if you have been convicted of any crime at all.

The court ruled that “a minor misdemeanor marijuana possession conviction is, as a matter of law, a disability.” Yet even the court seemed uncomfortable with this analysis, and in a nod to the seeming absurdity of the statute wrote that “we again emphasize that appellee’s arguments would be better directed at the General Assembly than the judiciary.”

So, the Ohio appellate court takes a hyper-narrow interpretation of the law to overturn another court’s verdict, and then tells the defendant to petition the legislature to get back his 2nd Amendment Rights?

This all begs some important questions: What precedent does this set? Can a state legislature pass a law banning anyone from possessing guns after the most mundane offenses? How about a speeding ticket? Riding a bicycle without a helmet? Failure to recycle?

It would seem in the state of Ohio, the answer right now would be a resounding “yes.”

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